Monday 18 June 2018

Appeal says certification fails to recognize potential harm to the Chesapeake Bay from sediment stored behind the dam

(Baltimore, Md.) – Waterkeepers Chesapeake and the Lower Susquehanna Riverkeeper Association filed an administrative appeal on June 8, 2018, urging the Maryland Department of the Environment to reconsider its recent water quality certification for the Conowingo Dam, which is owned and operated by Exelon Corporation. Exelon has requested a new 50-year federal license to operate the dam, and, in order to receive that license, the State of Maryland must certify that the dam’s operations will not adversely impact water quality under the Clean Water Act.

“This is one of the most important decisions in the effort to clean up the Chesapeake Bay,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake, a coalition of 19 independent waterkeeper organizations. “We shouldn’t be approving a 50-year license without a solid, accountable plan for removing sediment from behind the dam.”

The Conowingo Dam was completed in 1928 and, since that time, it has been trapping sediment and nutrient pollution from the Susquehanna River and its 27,000-square-mile drainage area. Sediment is one of the three key pollutants, along with nitrogen and phosphorus, that is regulated under the federal Chesapeake Bay cleanup plan, known as the TMDL.

Scientists have concluded that the reservoir behind the dam is now at capacity and cannot trap any more sediment. After large storms, powerful floodwaters can scoop out or “scour” the stored sediment behind the dam and send that downstream to the Chesapeake Bay in the form of pollution.

“Sediment runoff from agriculture and development has been stockpiling behind Conowingo dam for nearly 100 years,” said Ted Evgeniadis, Lower Susquehanna Riverkeeper. “The Susquehanna River is a public resource, and Exelon profits from operating a dam on it. Exelon therefore shares a responsibility to help prevent this sediment from polluting the Bay and we believe the State of Maryland must hold them accountable to do so.”

Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper Association and Earthjustice submitted public comments during the relicensing process. The organizations say that the Maryland Department of the Environment has failed to address them.

The organizations also say that, for the certification to protect water quality, the State must understand the full potential of large flooding events that could cause dramatic harm to the Bay. The new license covers 50 years, but the State has yet to conduct a study or model how much sediment pollution would be scoured from behind the dam during a 50-year storm, or even a 25-year storm, which has an 83 percent chance of occurring during the license period. Scientists say large storms and heavy rain events are happening more frequently due to climate change, which means the risk of a catastrophic storm continues to increase.

“In just the last month, we’ve seen serious, damaging flooding throughout the region,” said Nicholas. “It’s irresponsible not to account for the increasingly likelihood that Conowingo Dam experiences a major flood during the next fifty years.”

The Maryland Department of the Environment issued its water quality certification for the Conowingo Dam on May 11, 2018. While the certification acknowledged the impact of the dam on water quality, including the threat posed by the accumulated sediment, it does not put specific measures in place to address the sediment.

“When Congress adopted the Clean Water Act, it purposefully gave states a very broad authority on federal permits,” said Jennifer Chavez, attorney for Earthjustice, which is serving as legal counsel for the appeal. “We’ve filed this request for reconsideration because we want to ensure that Maryland uses the best available science before exercising that critical authority.”

The Maryland Department of the Environment will review the appeal and either grant the request to reconsider and revise the certification or deny it. There is no deadline by which the Department must make its decision.

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Waterkeepers Chesapeake is a coalition of nineteen independent programs working to make the waters of the Chesapeake and Coastal Bays swimmable and fishable. www.waterkeeperschesapeake.org

The Lower Susquehanna Riverkeeper Association is a non-profit watershed association that seeks safe drinking water, sustainable use of natural resources, and the ability to fish and swim in the Susquehanna River and her tributaries. www.lowersusquehannariverkeeper.org

As the nation’s original and largest nonprofit environmental law organization, Earthjustice leverages our expertise and commitment to fight for justice and advance the promise of a healthy world for all. www.earthjustice.org

The Waterkeepers and Riverkeepers in our coalition are vigilantly working to make the waters of the Chesapeake and Coastal Bays swimmable and fishable. Together, the Waterkeepers Chesapeake network patrols thousands of miles of tributaries and shorelines throughout the Chesapeake and Coastal Bays, and are at the forefront of water quality related enforcement and advocacy efforts in Virginia, Maryland and Pennsylvania. Earlier this month we shared our legislative victories in Maryland. Here’s what you need to know about the 2018 Virginia and Pennsylvania (so far) legislative sessions.

In Virginia, from January to March this year the James Riverkeeper and others worked hard to protect oyster sanctuaries across the state. Fortunately, they were successful in defeating a bill which would have placed these invaluable sanctuaries at risk (for the second year in a row!). Next week, Virginia will be considering its state budget - with a proposal from Governor McAuliffe that supports the Virginia Land Conservation Foundation, Virginia Outdoors Foundation and Environmental Education. There are also multiple proposals from the Senate, like $20 million for the Stormwater Local Assistance Fund and funding for oyster restoration and replenishment, that we are supportive of. Find out more about the Virginia’s budget proposals here.

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Potomac Riverkeeper joined James Riverkeeper to address the threats associated with coal ash in the Virginia legislature. They successfully advocated for the passage of Senate Bill 807, which prevents the Virginia Department from Environmental Quality (DEQ) from issuing any new coal ash solid waste permits at Dominion until July 1, 2019. This will not prevent DEQ from issuing permits from the closure of ponds that coal ash has been moved out of. The bill also requires a report by December 2018 that reviews the amount of recyclable coal ash at each coal ash pond, the costs associated with recycling, and the market demand for recycled ash.

Another bill Waterkeepers Chesapeake was closely watching - Senate Bill 950 - was signed by the Governor at the end of March. This bill requires DEQ to conduct a Clean Water Act Section 401 Water Quality Certification, or additional reviews and analysis of potential water quality impacts, of any new pipeline (larger than 36 inches in diameter) within one year of receiving an application for construction. This bill will bring Virginia in line with federal court rulings that a state must ‘use or lose’ its Clean Water Act authority to conduct additional reviews on major infrastructure projects within a year of receiving a permit application.

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In Pennsylvania, the legislative session will run through the end of June - so there’s still a fighting chance on a few environmental policies! We’ve seen a few victories in the Senate, with the passage of the sunset of the Recycling Fund and a fix to the Sewage Facilities Act. We’ve also seen a few losses, like House Bill 1959, which passed in the House and would create a new third party permit review bureaucracy at Pennsylvania’s Department of Environmental Protection. This bill represents yet another attempt to give potentially biased third parties the power to direct DEP to issue permits for projects that cause environmental harm. If you live in Pennsylvania, make sure to contact your state representative and voice your opposition for this bill!

Another bill moving through the Pennsylvania legislature - Senate Bill 792 - has our full support as it would provide comprehensive licensing, registration and labeling for toxic fertilizers in the state. Overwhelmingly passing in the Senate, this bill addresses concerns of growing stormwater pollution from urban and suburban sectors and aims to reduce the environmental impacts from fertilizers that impair the Chesapeake Bay. This is another important bill to contact your house representative on!

As more environmental and water quality bills move through the Pennsylvania legislature, we’ll keep you updated on their status. To stay up to date on all of Waterkeepers Chesapeake work, sign up for emails and action alerts here.

Maryland’s 2018 Legislative Session Wrap-Up Featured

With the 2018 Maryland Session coming to a close earlier this month, we’d like to let you know about the important legislative victories we achieved along with some of the policies we may revisit in 2019. Over the past few months, Waterkeepers Chesapeake partnered with Maryland waterkeepers and other environmental organizations in the General Assembly to increase public access to government records, increase public participation at the Public Service Commission (PSC), prevent the use of harmful chemicals, decrease the amount of foam in local waterways, and close loopholes under current law that enable the net loss of forests in Maryland -- to name a few.

 

Legislative Victories

Thanks to the work of Fair Farms and others, we were able to secure funding for the Maryland Farms and Families program.The Maryland General Assembly included $200,000 in the final budget for this program that matches purchases made by low-income Marylanders using federal nutrition assistance like SNAP (food stamps) at participating farmers markets. While the Governor still needs to allocate the funds for this program -- you can ask him to do so here -- we are now one step closer to having Maryland fund a successful program that directly supports small farmers, food-insecure Marylanders, and our local economy.

This past session the General Assembly also legalized hemp production in Maryland. Hemp has a number of benefits for our environment, provides a new income stream for farmers, diversifies our state’s agricultural system, and may bring new jobs and opportunities to Maryland. You can find out more about the benefits of this beneficial crop in this educational report from the Abell Foundation.

South Riverkeeper, ShoreRivers, Clean Water Action, and other partners were able to secure the passage of legislation that incentivizes the development of Septic Stewardship Plans in localities. The Plans incorporate best management practices and will allow the Maryland Department of the Environment (MDE) to more readily identify failing septic systems across the state. This policy is on the way to be signed by the Governor and once it’s implemented, we’ll have less nitrogen in our waterways across the state.

Another legislative win includes the passage of the Complete Streets Program, which provides grants to local jurisdictions to update their roads to include retrofits for bicyclists and green stormwater infrastructure, among other improvements. This program aims to reduce stormwater runoff, promote healthy communities, and improve the safety of Marylanders. A big thank you to Delegate Brooke Lierman for sponsoring this legislation.

This session we also supported the work of Assateague Coastkeeper and others to establish strict liability for any future offshore drilling activities in Maryland. With three proposed lease areas for drilling off the coast in Maryland under a new program from the Bureau of Ocean Energy Management, this bill acts a stopgap measure to prevent and discourage any drilling from taking place by establishing offshore drilling as an “ultrahazardous and abnormally dangerous activity” - meaning that any company that drills will be held liable for any damage or injury to a person or property due to any activities associated with drilling, regardless of the circumstances. It is our hope that this bill and other efforts will ultimately make offshore drilling in Maryland not viable.

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Issues to Revisit in 2019

Improved Public Participation and Notification at the Public Service Commission

A suite of bills we promoted would have modernized the public notification process at the Public Service Commission (PSC) and would have built health considerations into the review process. For instance, House Bill 715 would have required public notice via multiple forms of print and social media, and the opportunity to opt-in to direct text messaging for major projects, like power plants, going through the PSC. While this bill had strong grassroots support and educational messaging, unfortunately this bill did not make it out of the House Economic Matters Committee due to inaction from House Leadership. Over the interim, we plan to ramp up education around these much needed issues and work with Delegate Robynn Lewis, the Maryland Environmental Health Network, and others to garner support from key legislator champions.

Public Access to Records

According to the Maryland Department of Agriculture, Nutrient Management Plans (NMPs) “protect Maryland’s waterways from nutrient pollution... [and] ensure that nutrients [and manure] applied to crops and lawns are not impacting waterways." While the Maryland legislature intended to make NMP summaries and associated cost-share documents available to the public, the high costs and large amount of redactions to this information has virtually rendered it inaccessible. House Bill 1221 sought to address this problem, while still protecting the identity of the NMP holder - simply bringing NMPs in line with other information that’s available through Public Information Act. While this bill ultimately failed in the House Environment and Transportation Committee, we plan to work with Environmental Integrity Project and other partners over the interim to obtain fair access to this information.

More Forests, Cleaner Waterways

Conserving forest acreage is vital for clean water as forests act as one of nature's best water filters and reduce runoff. The Forest Conservation Act would have closed loopholes that enable the net loss of Maryland's priority forests due to development. While this bill was turned into a Task Force bill, and then ultimately died in the Senate, we believe the issue will be ripe for further discussion in 2019.

Safer Communities

House Bill 116 and Senate Bill 500 would have prevented the use of chlorpyrifos--a toxic, nerve agent pesticide--in the state of Maryland. Despite having a preponderance of credible science that links chlorpyrifos with brain damage in children and support for the bill from thousands of Marylanders, special interests were able to kill the bill quietly in the Senate. We’ll continue our work in ensuring safe and clean waterways from harmful chemicals and pesticides, like chlorpyrifos, and revisit this issue in 2019.

Less Foam in Local Waterways

House Bill 538 and Senate Bill 651 would have lessened the amount of disposable foam products in our local streams and rivers by reducing the amount of foam used for food services. Foam breaks into tiny pieces that absorb 10 times more pesticides, fertilizers, and chemicals than other kinds of plastic. This increases toxin exposure to our marine life and threatens local waterways and drinking water sources alike. While Senate Bill 651 was voted out of the Senate Education, Health, and Environmental Affairs Committee, it ultimately failed on the Senate Floor.

Community Healthy Air Act

House Bill 26 and Senate Bill 133, otherwise known as the Community Healthy Air Act, would have required a one-time study of air emissions from industrial livestock farms to see if there may be health impacts on neighboring communities.While this bill simply sought science and and basic information to ensure the safety of Marylanders living in areas overburdened with farming operations, the Community Healthy Air Act did not move out of committee. By working on this bill, legislators and their staff were able to learn about this important issue and hear directly from citizens concerned about their health.

These past few months had a few challenges and unexpected surprises, and while we wish all of our priority bills had passed, we are feeling incredibly inspired and hopeful to make progress on our issues moving forward.

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